Government Takes A U-Turn On Warrantless Wiretaps

Solicitor General Donald Verrilli made a case before the Supreme Court last October based on information that he has discovered to be incorrect.

Haraz N. Ghanbari
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Originally published on October 24, 2013 5:39 pm

The Obama administration recently discovered that it unintentionally misled the Supreme Court last year in a warrantless wiretapping case involving U.S. citizens. Now, the Department of Justice is changing its policy to comply with the law and assurances it gave the high court.

The key figure in this saga is Solicitor General Donald Verrilli, the government's chief advocate before the Supreme Court. Late last October, he argued before the court that human rights groups had no legal standing to challenge parts of the Foreign Intelligence Surveillance Act, commonly known as FISA.

FISA, as amended in 2008, allows the government to conduct electronic surveillance of individuals abroad, without a warrant, even though the surveillance may incidentally capture the voices and messages of U.S. citizens.

The human rights groups in that case contended that the law was unconstitutional because their communications with their clients were almost certainly being picked up without a warrant.

When the case reached the Supreme Court, Solicitor General Verrilli argued that the groups did not have legal standing to challenge the law because they could not prove that they were spied upon. Rather, he said that their claim amounted merely to a fear of spying.

Several justices pressed Verrilli in court, asking who then — if anyone — would have standing to challenge the law. Verrilli told the court that "an aggrieved person, someone who is a party to a communication" would receive notice if the government planned to introduce information derived from that communication at trial, and would then have standing to challenge the law.

In dismissing the human rights organizations' case, the Supreme Court reiterated its understanding that there were others who would have standing to challenge the law.

But in June, Verrilli read a New York Times article reporting that in two terrorism cases, federal prosecutors had refused to disclose whether the defendants had ever been overheard on warrantless wiretaps.

The usually soft-spoken solicitor general was furious, according to Justice Department sources.

His ire was particularly focused on a number of national security lawyers who had been present for his practice sessions prior to the Supreme Court arguments on FISA last year. Those lawyers knew that prosecutors were routinely not making disclosures, but did not bother to tell Verrilli.

Verrilli is not the first solicitor general to be burned by his own side. During the presidency of George W. Bush, Solicitor General Paul Clement assured the Supreme Court in 2004 that the U.S. did not engage in torture. The infamous Abu Ghraib photographs were published later that same day. Clement remains angry about being blindsided.

This time, however, the outcome of the internal debate that took place is somewhat different. Verrilli set out personally to change the administration's policy.

To understand this complex issue, consider a fictitious, but likely, example: Bob Smith in the U.S. exchanges several emails with a known terrorist in Pakistan. The emails don't contain anything obviously incriminating. But intelligence officials decide that Bob deserves a closer look, and they soon discover grounds for worry.

Based on that discovery, they obtain a warrant. By listening in on his communications, they collect evidence and charge him with plotting to blow up a bridge in New York.

The legal question then is: Does the U.S. government have to tell Bob's lawyers that the government initially got on to him from a warrantless wiretap?

Until recently, Justice Department prosecutors had claimed they did not have to tell defense lawyers about the warrantless surveillance, so long as that information was not used directly at trial.

That is where Verrilli disagreed. His reading of FISA was that it had a different requirement: When evidence has been "derived from" warrantless electronic surveillance, the government "shall disclose" that fact to the defendant.

Armed with that knowledge, the defendant can file a motion in court to suppress all of the information subsequently gathered, on the grounds that it traces back to the original, warrantless surveillance.

Verrilli, according to sources, believes that most, if not all, defendants could not successfully make that case. Rather, the government could justify independently the way it independently compiled evidence for the trial.

But the solicitor general also believed that the law required that the defendants be informed if any of their communications were picked up without a warrant.

National security prosecutors initially had a fit. They said that if defendants were to be told about warrantless surveillance, the intelligence agencies might stop helping the Justice Department make criminal cases.

Eventually, lawyers for the Justice Department and the intelligence agencies met for a sitdown. Sources say a consensus was reached that Verrilli was correct — the law does require informing criminal defendants. If that ends up causing problems, the group agreed, it will be up to Congress to change the law.

Legal experts from the George W. Bush administration concur. Steven Bradbury headed the Office of Legal Counsel, advising the president on the meaning of the law. According to Bradbury, "Congress specifically contemplated that the fruits of this broad, foreign-targeted surveillance program would be useful in criminal prosecutions."

Critics of the surveillance program are not satisfied by the government's recent U-turn. Jameel Jaffer, deputy legal director of the American Civil Liberties Union, argued on the other side of last October's FISA case. He says that Verrilli "has an institutional obligation to correct the record" and should inform the Supreme Court of his mistake.

It is not clear whether Verrilli plans to do anything of that sort.

But sometime in the next few weeks, the Justice Department is expected to inform an accused terrorist now in custody that his communications were first picked up through warrantless surveillance.

And that could send the whole issue back to the Supreme Court.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

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The Obama administration says it has discovered that it unintentionally misled the Supreme Court last year. That happened when the administration told the justices that the United States always informs terrorism defendants when evidence against them was acquired with a warrantless wiretap. Now the Justice Department is making sure its policy does match what it told the High Court.

NPR's Nina Totenberg reports.

NINA TOTENBERG, BYLINE: In many ways, the key figure in this saga is Solicitor General Donald Verrilli, the government's chief advocate in the Supreme Court. Just about a year ago, he was in the court chamber arguing that human rights groups had no legal standing to challenge parts of the Foreign Intelligence Surveillance Act, known as FISA.

That law, as amended in 2008, allows the government to conduct electronic surveillance of individuals abroad without a warrant, even though the surveillance may incidentally capture the voices and messages of U.S. citizens. The human rights groups in the case contended that the law was unconstitutional, because their communications with their clients abroad were almost certainly being picked up without a warrant.

When the case got to the Supreme Court, Solicitor General Verrilli argued that the groups had no legal standing to challenge the law, because they could not prove that they were spied upon. Several justices pressed Verrilli in open court, asking who then would have standing to challenge the law.

Here's what Verrilli said.

(SOUNDBITE OF SPEECH)

DONALD VERRILLI: Your Honor, under the statute, there are two clear examples of situations in which the individuals would have standing. The first is if an aggrieved person, someone who is a party to a communication, gets notice that the government intends to introduce information in a proceeding against them. They have standing.

TOTENBERG: In short, someone who is being criminally prosecuted, and the Supreme Court reiterated that understanding in its subsequent decision.

But in June, Verrilli read a New York Times article reporting that in two terrorism cases, federal prosecutors had refused to disclose whether the defendants had ever been overheard on a warrantless wiretap. The usually soft-spoken solicitor general was furious, according to Justice Department sources.

Verrilli is not the first solicitor general to be burned by his own side. During the presidency of George W. Bush, his solicitor general, Paul Clement, assured the Court in 2004 that the U.S. did not engage in even a little torture. Later that day, the infamous Abu Ghraib photographs were published. In this case, Verrilli set about personally to change the administration's policy.

The issue is complex. To understand it, let's take a fictitious, but likely example. Let's say Bob Smith in the U.S. emails a known terrorist in Pakistan several times. There's nothing obviously incriminating in the emails. But intelligence officials decide they should take a closer look at Bob, and they soon find there are grounds for worry. Based on that, they obtain a warrant.

Listening in on his communications, they collect evidence and charge him with plotting to blow up a bridge in New York. The legal question then is: Does the U.S. government have to tell Bob's lawyers that the government initially got onto him from a warrantless wiretap?

Until recently, Justice Department prosecutors had said no, they didn't have to tell Bob's lawyers. That's where Verrilli disagreed. His reading of the FISA law was that it had a specific requirement. When evidence has been, quote, "derived from a warrantless electronic surveillance," the government, quote, "shall disclose that fact to the defendant." Then the defendant, armed with that knowledge, can file a motion in court to suppress all the other information gathered subsequently, on the grounds that it traces back to the original warrantless surveillance.

Verrilli, according to sources, believed that most, if not all defendants could not make that case in court. He believed that the government could justify the way it compiled evidence independently. But he believed the law still required that the defendants be informed.

National security prosecutors initially had a fit. They said that if defendants were to be told about such things, the intelligence agencies might stop helping the Justice Department make criminal cases. Eventually, lawyers for both the Justice Department and the intelligence agencies had a sit-down. Sources say a consensus was reached that the law does require informing criminal defendants. And if that's going to cause problems, then Congress will have to change the law.

So, sometime in the next few weeks, the Justice Department is expected to inform an accused terrorist in custody that his communications were first picked up before there was a warrant. And that could well send the whole issue back to the Supreme Court.